Attorney Grievance Comm'n of Md. v. Ndi

McDonald, J. This attorney disciplinary matter concerns Respondent Benjamin N. Ndi, an attorney licensed in New York, but not in Maryland, who committed various violations of the rules of professional conduct, as well as of a related rule concerning the use of attorney trust accounts, while providing immigration and other legal services in Maryland. Mr. Ndi did not cooperate fully with Bar Counsel's investigation into his activities in Maryland, failed to respond to discovery requests in this proceeding, and did not appear at the evidentiary hearing before the hearing judge or at oral argument before this Court. Following oral argument, we disbarred Mr. Ndi and ordered the Clerk of this Court to place his name on the list of attorneys who are excluded from the practice of law in Maryland. 1 We now explain the reasons why we took that action. I Background A. Procedural Context On June 8, 2017, the Attorney Grievance Commission ("Commission"), through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Mr. Ndi.

The Commission charged him with violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16 (declining or terminating representation), 5.5 (unauthorized practice of law), 7.1 (communications concerning lawyer's services), 7.5 (firm names and letterheads), 8.1 (bar admission and disciplinary matters), and 8.4 (misconduct) of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"), as well as Maryland Rule 19-308.1 (bar admission and disciplinary matters) and Maryland Rule 19-308.4 (misconduct) of the Maryland Attorneys' Rules of Professional Conduct ("MARPC"). 2 He was also charged with violating former Maryland Rules 16-603 (duty to maintain trust account) and 16-604 (trust account-required deposits). 3 Pursuant to Maryland Rule 19-722, this Court designated Judge Joan E. Ryon, of the Circuit Court for Montgomery County, to conduct a hearing and to provide findings of fact and recommended conclusions of law. Mr. Ndi retained counsel, who filed an answer on his behalf. The answer admitted some of the allegations, denied others, and asserted a lack of information or memory as to others. Mr. Ndi's counsel subsequently filed a motion to withdraw his appearance, which the hearing judge granted on December 7, 2017.

No new counsel entered an appearance, nor did Mr. Ndi appear on his own behalf. Mr. Ndi did not respond to the written discovery requests of Bar Counsel or appear for his deposition noticed by Bar Counsel. As a result, Bar Counsel filed a motion for sanctions. Mr. Ndi did not respond to that motion.

The hearing judge granted the motion, striking Mr. Ndi's answer and precluding him from introducing any testimony or evidence at trial other than testimony as to mitigation. The hearing proceeded as scheduled on January 8, 2018. Mr. Ndi did not appear. The hearing judge issued findings of fact and recommended conclusions of law on February 7, 2018.

Neither party filed exceptions. This Court heard oral argument on April 10, 2018. Mr. Ndi did not appear. B. Facts We summarize the hearing judge's findings of fact and the exhibits submitted at the hearing as follows.

As no exceptions have been filed, we treat the findings of fact as established. Maryland Rule 19-741(b)(2)(A). Bar Membership and Office Location Mr. Ndi was admitted to the New York Bar in 2003. Mr. Ndi is not a member of the Maryland Bar.

During 2016 and 2017, he was in "delinquent status" with respect to his New York Bar membership for failure to pay fees associated with that membership. During that time period, he maintained an office for the practice of law in Montgomery County, Maryland. Representation of Martin Ndamchi Tamon Martin Ndamchi Tamon, a native and citizen of Cameroon, entered the United States on September 9, 2005, on a tourist visa. On September 6, 2006, Mr. Tamon filed a pro se application for asylum with the United States Citizenship and Immigration Services.

Mr. Tamon's asylum application was referred to the federal immigration court in Baltimore. In early February 2007, Mr. Tamon retained Mr. Ndi to represent him in the immigration matter and paid him $2,000 for that purpose. In his notice of appearance and subsequent filings, Mr. Ndi indicated a Takoma Park, Maryland, office address. Mr. Ndi appeared with Mr. Tamon before an immigration judge on February 7, 2007, at a master calendar hearing.

Mr. Ndi told the court that Mr. Tamon intended to pursue his asylum application before the immigration court. The immigration judge informed Mr. Ndi that the asylum application was not in the proper format and ordered Mr. Ndi to re-file the application in accordance with the immigration court's guidelines by April 9, 2007. Mr. Ndi failed to re-file Mr. Tamon's asylum application. On April 23, 2007, the immigration judge deemed Mr. Tamon's asylum application to be abandoned and issued an order that allowed Mr. Tamon 30 days to leave the United States, after which the order would become an order of removal.

A final order of removal would result in Mr. Tamon's arrest and deportation. Mr. Ndi did not promptly inform Mr. Tamon of the immigration court's order. Mr. Tamon learned of the order only when he called Mr. Ndi's office in May 2007 to check on the status of his case. On June 7, 2007, Mr. Ndi filed a motion with the immigration court to re-open Mr. Tamon's case.

In the motion, he asserted that he was a solo practitioner and had been "overwhelmed with work and inadvertently failed" to re-file the asylum application. The motion incorrectly stated that Mr. Tamon had been ordered removed in absentia - i.e ., because he had failed to appear for his case-and was based on case law regarding removals in absentia . As indicated above, the removal order was the result of Mr. Ndi's failure to re-file the asylum application in the proper format. Attached to the motion was an asylum application, but without the supporting documentation that had accompanied Mr. Tamon's original pro se application.

On June 22, 2007, the immigration court denied the motion to re-open Mr. Tamon's case. On August 2, 2007, Mr. Ndi filed an untimely motion to reconsider that denial, but failed to specify any error of fact or law in the decision. Once again, the stated basis of Mr. Ndi's motion was that he was a solo practitioner who was overwhelmed with work. The next day, the immigration court denied the motion to reconsider.

On November 23, 2007, Mr. Tamon filed a pro se appeal with the Board of Immigration Appeals ("BIA"). Mr. Tamon explained that he had experienced difficulty obtaining documents from Cameroon. However, the BIA denied his appeal as untimely. Representation of Joseph Shonga Joseph Shonga was also an immigration client of Mr. Ndi.

On November 12, 2015, Mr. Shonga was in an automobile accident in Baltimore and sustained injuries. On January 12, 2016, Mr. Ndi visited Mr. Shonga at his home in Laurel, Maryland, and offered to represent Mr. Shonga in seeking compensation for those injuries. According to Mr. Shonga, they entered into a written contingent fee agreement under which Mr. Ndi would receive 31% of any recovery as his fee. Mr. Ndi did not provide Mr. Shonga with a copy of the contingent fee agreement.

During the meeting, Mr. Ndi said that he would pay all of Mr. Shonga's medical bills from the settlement and then "see what is left." Mr. Shonga provided Mr. Ndi with five bills related to his medical treatment. On April 29, 2016, Mr. Ndi called Mr. Shonga and asked him to come to his office in Takoma Park. That same day, they met at the office, which was known as the "Center for Immigration Law." Mr. Ndi told Mr. Shonga that the insurance company had offered to settle the case for $17,000 or $18,000. At Mr. Ndi's recommendation, Mr. Shonga signed a settlement agreement.

Mr. Shonga also signed a "Settlement Statement" that represented that the total distribution was $17,000. According to the Settlement Statement, Mr. Ndi disbursed $8,000 to Mr. Shonga as the "Amount to Clients." He withheld $5,500 as the "Amount to Attorneys," which included: his fee of $5,666.67, increased by "Costs and Disbursements" of $900 ($100 for "Consultation," $300 for "Court fees," and $500 for "Paralegal Research"), and reduced by a "Discount" of $1,066.67. Mr. Ndi also withheld $3,500 from Mr. Shonga's total settlement for "Reimbursement of Client Costs," which included $1,000 for "Emergency Room Bill" and $2,500 for "Bill Maryland Health Care Clinic." Mr. Ndi gave Mr. Shonga a check for $8,000 written on an account of the Center for Immigration Law, which contained the notation "PI Settlement." The account was not an attorney trust account. Mr. Ndi failed to promptly pay all of Mr. Shonga's medical bills.

Mr. Ndi made the following disbursements to Mr. Shonga's medical providers: 1) On or about June 21, 2016, a check to Emergency Medicine in the amount of $124.86; 2) On or about June 21, 2016, a check to Neurological Medicine PA in the amount of $248.34; 3) In or about October 2016, a payment to Progressive MRI LLC in the amount of $250.00; 4) On or about November 20, 2016, a payment to Doctor's Community Hospital in the amount of $114.21; and 5) On or about March 2017, a payment to Carefirst BlueCross BlueShield in the amount of $377.80. Mr. Ndi did not disburse any amount in connection with "Maryland Health Care Clinic." In the months after he signed the settlement statement, Mr. Shonga continued to receive bills from health care providers. However, Mr. Shonga was unable to reach Mr. Ndi to obtain information about the status of payments to health care providers. On October 23, 2017, Maryland Healthcare Clinics filed a lawsuit against Mr. Shonga for failure to pay its bill.

Bar Counsel Investigation Mr. Tamon filed a complaint concerning Mr. Ndi with Bar Counsel on March 24, 2016. On April 27, 2016, Bar Counsel wrote to Mr. Ndi at the Takoma Park, Maryland, address provided by Mr. Tamon and requested a response to the complaint within 15 days. Mr. Ndi failed to respond to that letter, as well as to a follow-up letter from Bar Counsel the next month. On June 7, 2016, Bar Counsel sent copies of its previous correspondence and Mr. Tamon's complaint to Mr. Ndi at his Maryland addresses in Lanham and Burtonsville and asked Mr. Ndi for information concerning his current business address, areas of practice, and bar admissions.

In a letter dated June 20, 2016, Mr. Ndi provided an incomplete response to Bar Counsel's request on a letterhead for the Law Offices of Okedi & Ndi, Attorneys at Law, at a Burtonsville, Maryland, address. The letterhead did not specify that Mr. Ndi was licensed only in New York, or otherwise indicate jurisdictional limitations. Mr. Ndi did not provide a copy of Mr. Tamon's file, nor did he provide his email address or a list of jurisdictions in which he was authorized to practice law. The hearing judge found that Mr. Ndi made knowing and intentional misrepresentations to Bar Counsel in the June 20, 2016 letter.

First, Mr. Ndi blamed Mr. Tamon for Mr. Ndi's failure to re-file Mr. Tamon's asylum application on time. Mr. Ndi wrote: "The fact that I stated that I was a sole Practitioner was not the cause of the delay. I forgot to add the statement that we also received the documents late from the complainant." This statement was false and misleading because the immigration judge had only required that Mr. Ndi re-file the asylum application that Mr. Tamon had previously filed, except in the proper format. No new documentation had been required.

Second, Mr. Ndi falsely stated that his practice was "limited to Immigration Law." In fact, as indicated above, Mr. Ndi had recently engaged in the unauthorized practice of personal injury law in Maryland in Mr. Shonga's case. On July 14, 2016, Bar Counsel wrote to Mr. Ndi and requested the following: (1) the address where he currently worked or maintained an office; (2) a list of jurisdictions where he was licensed to practice law and the date of admission in each jurisdiction; (3) certificates of good standing from each jurisdiction in which he was admitted to practice; (4) an explanation for his failure to identify any jurisdictional limitations; and (5) Mr. Tamon's client file. On July 26, 2016, Mr. Ndi responded to Bar Counsel on stationery with a letterhead that indicated a Burtonsville, Maryland, address. However, it did not state that his practice was limited to federal immigration matters.

In the letter, Mr. Ndi stated that he was admitted to practice law in New York, that he was in "active practice," and that he specialized in immigration law. However, he failed to provide a certificate of good standing from New York. In the body of that letter, he provided an excerpt of what he said was his "office letterhead." The office letterhead purported to be for the "Law Offices of Okedi & Ndi, Attorneys at Law" at a Washington, D.C. address. A notation indicated Mr. Okedi was admitted in Maryland and New York, that Mr. Ndi was admitted in New York, and that a third attorney was admitted in Maryland and the District of Columbia.

Subsequently, by letter dated August 1, 2016, the bar licensing authority in New York advised Bar Counsel that, as of July 2015, Mr. Ndi was in delinquent status as a result of his failure to pay bar dues. Shortly thereafter, on September 9, 2016, Mr. Shonga filed a complaint with Bar Counsel concerning his experience with Mr. Ndi. Bar Counsel sent a copy of the complaint to Mr. Ndi on September 29, 2016 and requested a response. In a separate letter the next day, Bar Counsel also requested again that Mr. Ndi provide a certificate of good standing from New York.

Mr. Ndi failed to respond to either request. Bar Counsel sent a follow-up letter concerning Mr. Shonga's complaint by certified mail, but the correspondence was returned to Bar Counsel marked "Return to Sender, Unable to Forward." Five months later, on March 7, 2017, Mr. Ndi belatedly replied to the request for a certificate of good standing with a letter that enclosed a certificate of good standing from New York dated March 1, 2017. The cover letter was on letterhead with a Lanham, Maryland, address. On March 16, 2017, Mr. Ndi also belatedly responded to Bar Counsel's request for a response to Mr. Shonga's complaint.

The letterhead of that letter included the same Washington, D.C. address and legend as the letterhead sent to Bar Counsel the previous July and also indicated "in care of" a Lanham address. In the March 16, 2017 letter, Mr. Ndi stated that he had not received Bar Counsel's inquiries because he was working in New York. He also stated that Mr. Shonga had signed the settlement agreement and picked up his settlement check at Mr. Ndi's Washington, D.C. office. (Mr. Ndi was not licensed to practice law in the District of Columbia).

Mr. Ndi enclosed a copy of the retainer agreement, which stated that he would receive one-third of any recovery. He also enclosed a copy of a settlement sheet dated April 29, 2016 and copies of cancelled checks drawn on an account of the Center for Immigration Law in Takoma Park, purportedly to show that Mr. Shonga's medical bills had been paid. The account was not an attorney trust account. Mr. Ndi did not provide a copy of the check received from the insurance company.

Although the settlement sheet represented that $2,500 would be disbursed to "Maryland Health Care Clinic," the other enclosures did not include a copy of a check to that entity. The hearing judge found that Mr. Ndi knowingly and intentionally misrepresented to Mr. Shonga that he had disbursed $2,500 to that entity to pay Mr. Shonga's bill. The hearing judge also found that Mr. Ndi made misrepresentations to Bar Counsel in the March 16, 2017 letter concerning the amount of the settlement withheld from Mr. Shonga and his knowledge of the medical bills to be paid. The Website of Mr. Ndi's Firm As of July 14, 2016, the law firm of Okedi, Ndi & Associates maintained a website at < https://lawofficesokedindi.wordpress.com>.

The website listed the members of the firm as Mr. Ndi and Gini Okedi, as well as the available services. The website included an advertisement for "Experienced Litigation & Immigration Attorneys." The website listed the following areas of practice: Personal Injury, Complete Immigration Practice, Employment Law, Family Law, Criminal Law-DUI/Traffic, Business Associations, and "General Litigations." Below the areas of practice, the advertisement provided phone numbers for both Mr. Ndi and Mr. Okedi. The "About Us" page on the website stated, in pertinent part, that "Attorney Benjamin N. Ndi and Gini Okedi's goals [sic] are to assist both individuals and corporations through counseling and representation in all matters that relate to Immigration, Personal Injury, Family Law, Family Law [sic], Employment Law, Criminal Law, and General Litigation." II Discussion Our authority to discipline an out-of-state lawyer who provides legal services in Maryland is reflected in Rule 8.5(a)(2). 4 Under that rule, an attorney who is not admitted in Maryland is subject to the disciplinary authority of this Court if the attorney, among other things: (1) provides or offers to provide any legal services in Maryland or (2) holds himself out as practicing law in Maryland. Based on the facts found by the hearing judge, Mr. Ndi is subject to the disciplinary authority of this Court under both of those prongs.

With respect to the alleged violations of the rules of professional conduct, the hearing judge found that Mr. Ndi committed all but one 5 of the alleged violations. Upon due consideration of the hearing judge's recommended conclusions of law, we hold as follows. Failing to Meet Basic Standards We agree with the hearing judge that Mr. Ndi violated Rule 1.1 (competence), 1.3 (diligence), 1.4 (communication), and Rule 1.16 (declining or terminating representation). Rule 1.1 requires that a lawyer provide competent representation to a client.

An attorney violates Rule 1.1 if he "fails to act or acts in an untimely manner, resulting in harm to his or her client." Attorney Grievance Comm'n v. Brown , 426 Md. 298 , 319, 44 A.3d 344 (2012). Evidence that an attorney failed "to apply the requisite thoroughness and/or preparation in representing a client is sufficient alone to support a violation of Rule 1.1." Attorney Grievance Comm'n v. McCulloch , 404 Md. 388 , 398, 946 A.2d 1009 (2008) ; see also Attorney Grievance Comm'n v. Garrett , 427 Md. 209 , 222-23, 46 A.3d 1169 (2012). Rule 1.3 requires a lawyer to act "with reasonable diligence and promptness." Failing to keep a client informed as to the status of the case and failing to respond to the client's inquiries violates that rule. See Attorney Grievance Comm'n v. Park, 427 Md. 180 , 192, 46 A.3d 1153 (2012).

Mr. Ndi failed to satisfy the standards of competence and diligence in both cases investigated by Bar Counsel. In Mr. Tamon's case he failed to re-file Mr. Tamon's asylum application with the immigration court in the proper format by the stated deadline, and the asylum application was dismissed as a result. When Mr. Ndi filed a motion to reopen on Mr. Tamon's behalf, he incorrectly stated that Mr. Tamon had been ordered removed in absentia and failed to include the supporting evidence that had been submitted with the original pro se application. As a result, that motion was denied.

He also failed to file a timely motion to reconsider that decision, and the untimely motion he did file failed to state any appropriate rationale. In Mr. Shonga's case, Mr. Ndi violated the standards of competence and diligence by failing to pay Mr. Shonga's medical bill from Maryland Healthcare Clinics, as he had promised. Rule 1.4 requires a lawyer, among other things, to "keep the client reasonably informed about the status of the matter" and "promptly comply with reasonable requests for information." Rule 1.4(a)(2), (a)(3). See Attorney Grievance Comm'n v. Van Nelson, 425 Md. 344 , 354-55, 40 A.3d 1039 (2012).

Mr. Ndi failed to promptly inform Mr. Tamon that his asylum application had been deemed abandoned and that he had been given 30 days to voluntarily leave the county. Mr. Tamon learned that his